Since it has been roughly one year since Mozilla nominated me to sit on the OSI board, I thought I’d recap what I’ve done over the course of the year. It hasn’t been a perfect year by any stretch, but I’m pretty happy with what we’ve done and I think we’re pointed in the right direction. Because my primary public responsibility on the board has been chairing the license committee, this can also sort of double as a review of the last year in license-discuss/license-review (though there is lots of stuff done by other members of the community that doesn’t show up here yet).

Revised the opensource.org/licenses landing page to make it more useful to visitors who are not familiar with open source. Also poked and prodded others to do various improvements to the FAQ, which now has categories and a few improved questions.

Revised OSI’s history page. The main changes were to update it to reflect the past 5-6 years, but also to make it more readable and more positive.

Looked into objective analysis of license popularity, and a “license chooser” project. Both are huge projects. They do have some (quiet) momentum, but even if they are at all workable, they are still a long way out.

Some projects never really got off the ground:

I wanted to get GNOME to join OSI as an affiliate. This, very indirectly, spurred the history page revision mentioned above, but otherwise never really got anywhere.

I wanted to figure out how to encourage github to require a license for new projects, but got no traction.

I hope that this sounds like a pretty good year- it isn’t perfect but it felt like a good start to me, giving us some things we can build on for future years.

That said, it shouldn’t be up to just me – if you think this kind of thing sounds useful for the broader open source community, you can help :)

Join license-discuss, or, if you’re more sensitive to mail traffic, but still want to help with the committee’s most important work, join license-review, which focuses on approving/rejecting proposed new licenses.

Become a member! Easier than joining license-discuss ;) and provides both fiscal and moral support to the organization.

tl;dr: the open license ecosystem assumes that sharing can’t (or even shouldn’t) happen without explicit permission in the form of licenses. What if “post open source” is an implicit critique of that assumption – saying, in essence, “I reject the permission culture”? If so, license authors might want to consider creating options that enable people to express that opinion.

A few months back, James Governor said:

younger devs today are about POSS – Post open source software. fuck the license and governance, just commit to github.

A few months back, I pointed out that the lack of licensing led to confusion and so was great for lawyers. That post was accurate, but slightly glib. Here, I want to grapple more seriously with the rejection of licensing, and provoke the licensing community to think about what that means.

A dab of history and context

In the US, prior to the 1976 Copyright Act, you had to take affirmative steps to get a protectable copyright. In other words, you could publish something and expect others to be able to legally reuse it, without slapping a license on it first.

Since the 1976 Act, you get copyright simply by creating the work in question. That means every blog post and every github commit is copyrighted. This restrictive default, combined with the weakness of fair use, leads to the “permission culture” – the pernicious assumption that you must always ask permission before doing anything with anyone’s work, because nothing is ever simply shared or legally usable. (This assumption is incorrect, but the cost of acting that way can be high if you make a mistake.)

It is easy to assume that the pushback against licenses (“post-open source”) is because licensing is confusing/time-consuming and people are lazy/busy. While I’m sure these are the primary reasons, I think that, for some people, the pushback against licenses often reflects a belief that “no copyright should mean no permission needed”. In other words, those people choose not to use a license because, on some level, they reject the permission culture and want to go back to the pre-1976 defaults. In this case, publishing without a license is in some way a political statement – “not every use should need permission”.1

Fixing(?) the politics of our licenses

If some “no license” sharing is a quiet rejection of the permission culture, the lawyer’s solution (make everyone use a license, for their own good!) starts to look bad. This is because once an author has used a standard license, their immediate interests are protected – but the political content of not choosing a license is lost. Or to put it another way: if license authors get their wish, and everyone uses a license for all content, then, to the casual observer, it looks like everyone accepts the permission culture. This could make it harder to change that culture – to change the defaults – in the long run.

So how might we preserve the content of the political speech against the permission culture, while also allowing for use in that same, actually-existing permission culture? Or to put it more concisely:

What would a “license” that actively rejects the permission culture look like?

A couple of off-the-wall options:

Permissive+political preamble license: The WTFPL license (“Do WTF you want“) has been floating around for ages, and using it makes the point that (1) you want people to use your code and (2) you’re irritated that they even have to ask. Adding a brief “I hate that I have to do this” preamble to a permissive license like CC-0 might serve a similar purpose, while providing more legal certainty than WTFPL. (And of course such a preamble could also be used with a strong copyleft, like copyleft-next.)

Fair Use supplement: Fair use is the traditional safety valve for copyright, but it is hard to know if a particular use is “fair.” So a “license” could be written that, instead of formally licensing under specific terms, instead aims to provide more certainty about fair use. Some ways this could be done would include broadly defining the fair use categories, explicitly accepting transformative use as a factor in the fair use analysis, or asking courts to interpret ambiguity in favor of the recipient instead of the author. It is also possible to imagine this as a supplement to the existing fair use clauses in modern licenses (CC-BY 3.0 Sec. 2, GPL v3 Sec. 2, MPL 2 Sec 2.6), laying out a strong vision of fair use to help guide and protect anyone relying on those clauses.

“What People Actually Think Copyright Is” license: most Americans2 think that personaluse of copyrighted materials is legal under modern copyright law. So a license that focused on personal use might work better than the more nebulous “non-commercial”. As a bonus, since commercial interests will clearly be unable to use the content, getting it “right for lawyers” may be less of a concern.

Careful readers will note that the last two options are unlikely to be OSI-open or FSF-free. For the purposes of this exercise, that’s OK- OSI, FSF, and CC’s iron-clad assumption that licensing is good is what I’d like to provoke people to think about here.3

Conclusion, and provocation

I don’t offer these license ideas as a comprehensive survey of what an anti-permission-culture license might look like, or even a good survey. Instead, take them as a provocation: are we – particularly authors and evaluators of open licenses – part of the problem of the permission culture? Are we actually responding to the people who use our licenses, if one of their desires is to push back against the need to license? Can we be more creative about expressing distaste for the permission culture, without gumming up the works of sharing too much? I think that, if we think critically, we can, and perhaps we should.

Another motive, that I won’t go into here but which also deserves serious discussion for license authors, is simply that the values encapsulated in our licenses are taken for granted by younger developers who have always had a plentiful, healthy free-as-in-beer code commons. Both the permissive and copyleft communities would do well to argue the case for their licenses (not just their overall philosophies) better than they currently do.

per Jessica Littman, Digital Copyright, p. 117

If it wasn’t already obvious, this post is obviously not made with my OSI hat on – OSI continues to firmly endorse the Open Source Definition.

Despite that, until today, all that a newbie would get when going to that page was two links: one to the list of approved licenses alphabetically, and another by category. This is obviously not ideal – it provides the newcomer with information useful only to an expert, so they lose; and OSI misses an opportunity to educate and inform, so we lose.

Because of this, in the middle of last year I sent an email to license-discuss proposing a revision to the page, and followed up several times in the second half of the year. Yesterday, I took the revision live.

gives context: what is an open source license? what does OSI-approved mean? These give a newcomer to the list a fighting chance of figuring out what the lists mean.

provides a less-overwhelming list of licenses: using the “popular, widely used, or have strong communities” list created by the 2006 Proliferation Report, it gives people pointers to several useful licenses immediately, while still providing access to the full lists.

is progress: OSI can be, and often should be, a very change-averse organization. But it is nice to score a small win here and there- I hope this will be the first of many while I chair the license committee.

And what it doesn’t do:

change the world: I’m blogging about this because it’s significant. But I also want to be clear that it is only a small win, and hopefully one that in 2-3 years OSI will look back on and have a good chuckle about.

change, update or revise the license categories: The original license proliferation committee license categories, from 2006, have been useful to many people, and were instrumental in slowing the pace of license proliferation. So they make sense to use as the (relatively neutral) basis for the list that is now prominent on /licenses/. But they’re showing their age- notably by including CDDL in “popular/widely used” but in other ways as well (primarily, by not categorizing a variety of new licenses). OSI’s licensing committee (aka the license-discuss list, with input from others) will be gradually investigating how to address this over the course of the next year or so. This process has already started, somewhat, with my calls for quantitative criteria for license analysis. I intend to continue to push the list (including hopefully new members!) to think through the issue and its implications.

Interesting research question/bleg: for a reasonably comprehensive set of important “open source + foo” terms, like collaboration, licensing, etc., where do search results point at? How many go to opensource.org? .com? other sites? Is there a tool that will do this sort of analysis automatically?

I want to heartily unendorse Simon Phipps’ Infoworld article about Github and licensing. Simon’s article makes it sound like no one benefits from sloppy licensing practices, and that is simply not true. Specifically, lawyers benefit! I regularly get calls from clients saying “I have no idea if I’m allowed to use <project X>, because it is on github but doesn’t have a license.” When that happens, instead of money going to developers where it could actually build something productive, instead, I get to spend my time and the client’s money fixing a problem that the original author could have easily avoided by slapping an Apache license on the thing in the first place – or that github could have avoided by adding default terms.

So, support your local open source lawyer today – publish source code without a license!1

Tongue firmly in cheek, in case that isn’t obvious. Seriously, lawyers are the only ones who benefit from this situation, except for that handful of seconds it took you to “git add LICENSE”. Always license your code, kids!

I don’t currently do much heavily collaborative writing, but I’m still very interested in the process of creating very collaborative works. So one of the many stimulating discussions at Monktoberfest was a presentation by two awesome O’Reilly staffers about the future (and past) of authorship. Needless to say, collaborative authoring was a major theme. What particularly jumped out at me in the talk and the discussion afterwards was a nagging fear that any text authored by multiple people would necessarily lack the coherence and vision of the best single-author writing.

I’ve often been very sympathetic to this concern. Watching groups of people get together and try to collaboratively create work is often painful. Those groups that have done best, in my experience, are often those with some sort of objective standard for the work they’re creating. In software, that’s usually “it compiles,” followed (in the best case) by “it passes all the tests.” Where there aren’t objective standards all team members can work with – as is often the case with UI – the process tends to fall apart. Where there are really detailed objective standards that every contribution can be measured against – HTTP, HTML – open source is often not just competitive, but dominant.

Wikipedia is another very large exception to the “many cooks” argument. It is an exception because most written projects can’t possibly have a rule of thumb so straightforward and yet effective as “neutral point of view,” because most written projects aren’t factual, dry or broken-up-into-small-chunks. In other words, most written projects aren’t encyclopedias and so can’t be written “by rule.”

Or at least that’s what I was thinking during the talk. In response to this, someone commented during the post-talk Q&A1 that essentially all TV shows are collaboratively written, and yet manage to be coherent. In fact, in our new golden age of TV drama they’re often more than coherent- they’re quite good, despite extremely complex plots sprawling over several years of effort. This has stuck in my head ever since because it goes against all my hard-learned instincts.

I really don’t know what the trick is, since I’m not a TV writer. I suspect that in most cases the showrunner does it by (1) having a very clear vision of where the show is going (often not the case in software) and (2) clearly articulating and communicating that vision – i.e. having a good show bible and sticking to it.

If you’re not looking carefully, this looks a lot like what Aaron has rightly called a cult of personality. But I think, after being reminded about showrunners and show bibles, it is important to distinguish the two. It is a fine line, but there is a real different between what Aaron is concerned about and skilled leadership. Maybe a good test is to ask that leader: where is your show bible? What can I read to understand the vision, and help flesh it out like the writer of an episode? If the answer is “follow whatever I’m thinking about this month,” or “I’m too busy leading to write it down”, then you’ve got problems. But if your leadership can explain, don’t throw the baby out with the bathwater- that’s a person who has thought seriously about what they’re doing and how you can help them build something bigger and better than you could each do alone, not a cult leader.

As part of a general drive to get rid of stuff, I’ve recently become increasingly willing to part with my old books. This has been a painful process – books have many happy memories for me – but I think also a good and focusing one. As part of my emotional reaction to this, I’ve become increasingly interested in making beautiful, printed texts – things that stand up better to the test of time than the paperbacks I’ve been thinning out.

This gave me the idea to thank the most involved contributors to the MPL with a hand-made, printed copy of the text of the license.

The wonderful Kim Vanderheiden, of Painted Tongue, worked with me over the course of several months to plan this process, and then she and her team put them together. First, we designed the layout, not just of the text, but of the relatively unusual accordion-fold binding, which allowed the final product to be displayed like an A-Frame or by hanging the entire (very long!) thing from a wall. Then we picked paper for the text, and cloth and ribbon for the bindings (the ribbon symbolising both the fact that these are gifts and traditional bindings for legal documents). Kim’s team then hand printed them on their presses, and Kim used watercolors to paint the colored highlights (including the yellow highlighting that replaces the ALL CAPS text). Finally, they were bound.

The end result has been fifteen copies of beautiful, tangible, printed words, which I am now in the slow process of distributing to various contributors. I hope that this token of the maintainers’ appreciation for their assistance (in a variety of ways) is appreciated.

The thanks and colophon is as follows:

Thank You!

This revision of the MPL would not have happened without your help. Please accept this hand-crafted printing of the license as a token of our appreciation, and a reflection of the effort and care you put into your contributions to the license.

The type was set in Equity by Matthew Butterick (typo.la/equity – used with permission of the typographer) and Droid Sans Mono by Google (droidfonts.com – used under the Apache 2.0 license). The book is printed on Somerset Velvet Radiant White and covered in Duo Cloth Birch.

Design, printing, binding, and painting were done with care by the excellent team at Painted Tongue Press, Oakland, California (paintedtonguepress.com).

This edition of MPL 2.0 was printed in August 2012 to celebrate the publication of, and thank contributors to, MPL 2.0. You are holding copy # __
of 15.